Exceptions to Hearsay Rule Analysis
Explore exceptions to the rule that states hearsay is inadmissible, including unrestricted exceptions and specific scenarios such as present sense impression and excited utterance. Learn about Rule 802, Rule 803, and Rule 804, which govern the admissibility of hearsay evidence in legal proceedings.
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CHAPTER 4, PART C: EXCEPTIONS TO THE RULE THAT SAYS HEARSAY IS INADMISSIBLE Prof. JANICKE 2022
RULE 802 EXCLUDES MOST HEARSAY BUT THERE ARE EXCEPTIONS MEANING: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY 2022 Chap. 4, part C 2
TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE EXCEPTIONS THAT APPLY REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS TRIAL WITNESS [RULE 803] THESE ARE THOUGHT TO BE EXTRA RELIABLE FORMS OF EVIDENCE EXCEPTIONS THAT APPLY ONLY IF DECLARANT IS UNAVAILABLE AS TRIAL WITNESS [RULE 804] 2022 Chap. 4, part C 3
KEEP IN MIND -- WE DON T NEED ANY EXCEPTION TO THE HEARSAY EXCLUSION RULE (R. 802) IF WE ALREADY HAVE A DEFINITIONAL EXCEPTION per R. R801(d) E.G.: STATEMENT IS THAT OF THE OPPOSING PARTY OR HIS EMPLOYEE, ETC. 2022 Chap. 4, part C 5
(1) PRESENT SENSE IMPRESSION R. 803(1) - ASSIGNED COVERS TESTIMONY THAT -- DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER 2022 Chap. 4, part C 6
(2) EXCITED UTTERANCE R. 803(2) - ASSIGNED TESTIMONY THAT -- DECLARANT SAID SOMETHING ABOUT A STARTLING EVENT, WHILE UNDER THE EXCITEMENT CAUSED BY THE EVENT 2022 Chap. 4, part C 7
FOUNDATION: DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT THE JUDGE MUST FIND THAT THE DECLARANT WAS IN FACT STARTLED WHEN MAKING THE STATEMENT 2022 Chap. 4, part C 8
CASES Nutall Arnold 2022 Chap. 4, part C 9
(3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT R. 803(3) - ASSIGNED COULD BE VIEWED AS A SUBSET OF (1) MANY SITUATIONS CAN BE ANALYZED UNDER EITHER (3) OR (1), WITH SAME RESULT 2022 Chap. 4, part C 10
THEN WHY THIS RULE? ** THIS IS WHAT WE USE FOR TESTIMONY ON NON-PARTY DECLARATIONS OF INTENT, OFFERED TO HELP ESTABLISH LATER CONFORMING CONDUCT ** HE SAID HE INTENDED TO DO IT; THEREFORE, A BIT MORE LIKELY THAT HE DID DO IT 2022 Chap. 4, part C 11
THE DRAFTERS INTENT WAS TO ADOPT THE RULE OF THE HILLMON CASE IN THAT CASE, THE EVIDENCE OF INTENT WAS TREATED AS CREATING SOME DEGREE OF LIKELIHOOD THAT THE INTENT WAS CARRIED OUT: 2022 Chap. 4, part C 12
CASES Hillmon Pheaster 2022 Chap. 4, part C 13
803(3) INCLUDES STATEMENTS OF INTENT THAT INVOLVE ADDITIONAL PERSONS (JOINT PLAN) AS IN HILLMON BUT NOT A STATEMENT INVOLVING ONLY A THIRD PERSON S PLAN OR CONDUCT >>> 2022 Chap. 4, part C 14
(4) STATEMENTS TO PHYSICIANS R. 803(4) - ASSIGNED OFTEN OVERLAPS WITH (1) AND (3), BUT COVERS A WIDER GROUP OF STMTS. HERE, ONSET INFO IS INCLUDED GENERAL CAUSE INFO IS INCLUDED 2022 Chap. 4, part C 15
DIVIDING LINE: NO STATEMENTS AS TO FAULT, UNLESS NEEDED MEDICALLY WIT. (DOCTOR) TESTIFIES: HE TOLD ME IT BEGAN WHEN JACK HIT ME WITH A HAMMER WILL HAVE TO BE REPHRASED TO ELIMINATE JACK S FAULT 2022 Chap. 4, part C 16
FOUNDATION FACT: STATEMENT MUST HAVE BEEN MADE FOR PURPOSES OF DIAGNOSIS OR TREATMENT JUDGE DECIDES 2022 Chap. 4, part C 17
PROBLEMS/CASES Blake 2022 Chap. 4, part C 18
(5) PAST RECOLLECTION RECORDED R. 803(5) - ASSIGNED DIFFERENT FROM MEMORY REFRESHING HERE THE WITNESS TESTIFIES 1. HER MEMORY CANNOT BE REFRESHED 2. BUT IT WAS FRESH AT ONE TIME 3. AND SHE (OR A HELPER) MADE A RECORD OF IT AT THAT TIME 2022 Chap. 4, part C 19
MECHANICS OF USING EXCEPTION (5) RECORD CAN THEN BE READ IN, BUT THE DOCUMENT CAN T BE INTRODUCED 2022 Chap. 4, part C 20
(6) BUSINESS RECORDS R. 803(6) - ASSIGNED NEED NOT BE COMMERCIAL; ANY REGULAR ACTIVITY WILL QUALIFY CHURCH RECORDS BOOK CLUB RECORDS 2022 Chap. 4, part C 21
CAVEAT: ONLY APPLIES TO EVENTS OBSERVED INSIDE THE BUSINESS FACT REPORTS FROM OUTSIDE ARE NOT COVERED AND HAVE TO BE MASKED OUT 2022 Chap. 4, part C 22
FOUNDATION FOR (6) IS COMPLEX FOUNDATION NEEDED: 1. REGULAR ACTIVITY GOING ON 2. THIS DOC. MADE IN THE REGULAR COURSE OF IT 3. MADE AT OR NEAR THE TIME OF EVENTS LISTED 4. MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE 5. WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE 2022 Chap. 4, part C 23
CAVEAT: NONE OF THIS IS NECESSARY FOR OPPOSING PARTY S RECORDS THOSE ARE NOT HEARSAY ; NEED NO EXCEPTION EXCEPTION (6) IS USED FOR NON- PARTY RECORDS OR PARTY S OWN RECORDS 2022 Chap. 4, part C 24
PRONGS (3) AND (4) COULD BE DIFFICULT TO PROVE IF CHALLENGED LAWYERS OFTEN USE THE HABIT/ROUTINE PRACTICE RULE [R406] TO LAY THE FOUNDATION 2022 Chap. 4, part C 25
EVEN BETTER: AFFIDAVIT of AUTHENTICITY FEDERAL RULE 902 (11) ASSIGNED -- ALLOWS AFFIDAVIT PRACTICE THIS IS AN AUTHENTICITY RULE, BUT REFERENCED IN 803(6) AS O.K. FOUNDATION METHOD TO REMOVE THE HEARSAY PROBLEM 2022 Chap. 4, part C 26
CASE Petrocelli 2022 Chap. 4, part C 27
(7) ABSENCE OF A BUSINESS ENTRY RULE 803(7) - ASSIGNED SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION 2022 Chap. 4, part C 28
(8) OFFICIAL RECORDS and (9) VITAL STATISTICS RECORDS RULE 803(8) ASSIGNED RULE 803(9) - ASSIGNED THESE ARE USEFUL, BUT LIMITED 2022 Chap. 4, part C 29
THREE TYPES OF RECORDS FIT UNDER (8) 1. KINDS OF WORK DONE 2. THINGS SEEN BY OFFICIALS 3. RESULTS OF INVESTIGATIONS (CIVIL OR D ONLY) THIS IS A BIG SOURCE OF HEARSAY FROM OTHERS! 2022 Chap. 4, part C 30
TYPES OF PUBLIC RECORDS THAT FIT UNDER (9) BIRTHS, DEATHS, MARRIAGES NOTHING ELSE FITS HERE, PER MOST COURTS REPORTS MADE TO THE OFFICE BY CITIZENS, DOCTORS, HOSPITALS, CORONERS, ARE OK HERE BUT USUALLY: JUST THE FACT OF THE EVENT 2022 Chap. 4, part C 31
CONSPICUOUSLY MISSING: CRIMINAL RECORDS, ESP. CONVICTIONS, ARE NOT COVERED HERE BUT SEE 803(22) INFRA FOR FELONY JUDGMENTS 2022 Chap. 4, part C 32
PROBLEMS / CASES 4N 2022 Chap. 4, part C 33
CHURCH AND FAMILY RECORDS RULE 803(11-13) - ASSIGNED TREATED MUCH LIKE PUBLIC RECORDS UNDER (9) 2022 Chap. 4, part C 34
LEARNED TREATISES RULE 803(18) - ASSIGNED FOUNDATION: ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS PROCEDURE RESTRICTED 2022 Chap. 4, part C 35
REPUTATION TOPICS RULE 803(19-21) ALLOWED RE.: PERSONAL OR FAMILY HISTORY BOUNDARIES CHARACTER (WHEN OTHERWISE PERMITTED) 2022 Chap. 4, part C 36
JUDGMENTS OF FELONY CONVICTIONS RULE 803(22) - ASSIGNED ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT ONLY JUDGMENTS NOT ARRESTS NOT INDICTMENTS NOT VERDICTS 2022 Chap. 4, part C 37
